In Re Chan Yat-fai and Others

1992, MP No. 2400

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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Coram: The Hon. Mr. Justice Mayo in Court

Date of hearing: 31 May 1993

Date of delivery of judgment: 31 May 1993

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J U D G M E N T

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1. The 1st and 2nd Applicants have been living as man and wife since early 1987. At the time when they commenced cohabitation the 2nd Applicant was married to another man. However, she obtained a Degree Absolute of Divorce on the 23rd December 1988. The 2nd Applicant gave birth to the 3rd Applicant on the 24th March 1988 and the 1st Applicant claims to be his father.

2. The affirmation in support of this application was made by the 1st Applicant on his own behalf and on the other Applicant's behalf.

3. The 1st Applicant gives a brief background to the circumstances which are relevant to this application. He claimed that the 2nd Applicant entered Hong Kong from Thailand on the 24th July 1985 on a Thai passport and that the Director of Immigration granted her permission to remain in Hong Kong. This permission was extended on several occasions.

4. On the 22nd May 1991 she was refused a further extension on the ground that "she had acquired her stay in Hong Kong on the strength of an unlawfully obtained travel document".

5. Shortly prior to being notified of this the 2nd and 3rd Applicants were arrested by Immigration Officers and detained at Victoria Prison. They were released on a Recognisance on the 25th May 1991 and Removal Orders were made against the 2nd and 3rd Applicants under section 19 of the Immigration Ordinance on the 31st July 1991.

6. In paragraph 12 of the said affirmation the 1st Applicant refers to the fact that the 2nd Applicant was convicted of two offences and sentenced to 3 months' imprisonment in 1983. It is evident from the particulars of convictions which were filed that these offences related to breaches of the provisions contained in the Immigration Ordinance.

7. On the 6th August 1992 the 1st Applicant attended at the Tsimshatsui Marriage Registry and according to his affirmation attempted to give notice of his intended marriage to the 2nd Applicant but was unable to do so. The apparent reason for this was that the official who attended to him was unwilling to accept the said Recognisance as satisfactory evidence of the identity of the 2nd Applicant.

8. This refusal is the decision which is complained of in this application for Judicial Review.

9. The Relief which the Applicants are seeking is :-

"1. A Declaration that the 1st Applicant is entitled to file a notice of intended marriage between the 1st and 2nd Applicants with the Registrar of Marriages, and to become married upon compliance with the further provisions of the Marriage Ord. Cap. 181.

2. Mandamus, to direct the Registrar of Marriages to allow the 1st Applicant to file a notice of intended marriage, between the 1st and 2nd Applicants with the Registrar of Marriages.

3. Certiorari to quash the decision of the Registrar of Marriages of 6 August 1992, to refuse to allow the 1st Applicant to file a notice of intended marriage between the 1st and 2nd Applicants.

4. A direction that the grant of leave for Judicial Review will pursuant to O54 r3 (10)(a) RSC amount to a stay of the Removal Orders against the 2nd and 3rd Applicants.

5. Costs.

6. Such further or other relief as may be just (including a remedy pursuant to S. 7 Bill of Rights Ord. Cap. 383)"

10. The grounds on which relief is sought are :-

"1. The decision to refuse the filing of a notice of intended marriage is

(a) Contrary to the Marriage Ord. Cap. 181

(b) Contrary to the Bill of Rights

(c) Wednesbury unreasonable

(d) Flawed as being based on irrelevant considerations or a failure to take into account relevant considerations.

Particulars

(A) The 1st Applicant is a Hong Kong Permanent Resident and holder of HKID Card XXXXXXX(X).

(B) The 1st Applicant compiled with the requirements of S.6(1) and (2) Marriage Ord. and Form 1 thereof.

(C) There was a duty on the Registrar of Marriages to file the said notice.

(D) There is no requirement in the Marriage Ord. that the second party to the proposed marriage produce identification. Nevertheless, the 1st Applicant did produce the only identification of the 2nd Applicant that is available - a Recognizance bearing the name, signature and sealed photograph of the 2nd Applicant issued by the Director of Immigration under S 36(1) Immigration Ord. Cap. 115. This official document allows the 2nd Applicant to be lawfully at large in Hong Kong pending her removal (and that of the 3rd Applicant) to China.

(E) If the 1st and 2nd Applicants are permitted to marry in Hong Kong then their son, the 3rd Applicant, will thereupon become legitimate and the 1st Applicant will be thereupon be a person within S 50(9)(b) British Nationality Act. 1981.

(F) Further, if the 1st and 2nd Applicants are permitted to marry in Hong Kong then their son, the 3rd Applicant will then be permitted to be registered as a British Dependent Territories Citizen, pursuant to S 15(3) British Nationality Act 1981.

(G) Further, the Director of Immigration could then exercise his discretions under S 7(2) Immigration Ord. in respect of the 3rd Applicant and under S 13 Immigration Ord in respect of the 2nd Applicant, to allow them to remain in Hong Kong.

(H) The Bill of Rights by virtue of Articles 1, 14, 19, 22 and 23 enshrines the supremacy of the right to marry and to family life, without discrimination."

11. At the hearing before me the Applicants were not legally represented.

12. They were, however, initially represented by Messrs So & Co. Solicitors and the papers were drafted by Mr. McCoy of Counsel.

13. They were thus represented when the Respondents, the Registrar of Marriages and The Director of Immigration served comprehensive affidavits in reply to the 1st Applicant's affirmation.

14. Perhaps the most significant evidence filed in reply was evidence to the effect that when the 2nd Applicant had been convicted of the Immigration offences I have referred to she had, in addition to her present name, used the name Lam Sui Hung.

15. The Director had obtained finger print marks from Lam Sui Hung and these were identical to the finger print marks which were recently made by the 2nd Applicant in the name appearing in these papers.

16. Evidence was also adduced that a raid was conducted at the premises where the Applicants reside. During a search which was undertaken various letters were found which were addressed to Lam Sui Hung.

17. No affidavit evidence was filed to answer or provide any explanation for the evidence I have referred to.

18. I explained the position to the Applicants carefully at the commencement of the hearing and I enquired how they proposed dealing with the detailed evidence which had been filed by the Respondents.

19. Both Applicants simply denied any knowledge that the 2nd Applicant had ever used the name Lam Sui Hung. They were also unable to give any explanation as how letters addressed to Lam Sui Hung had been in their possession. They did, however, accept that they had both signed a receipt for the documents which had been seized which included these letters.

20. The Respondents also exhibited correspondence which had been exchanged with the Thai Authorities which clearly indicated that the Thai Passport which had been issued to the 2nd Applicant had been issued on the basis that false information had been tendered to the Thai Authorities. It was as a consequence of this that the Director had refused to return the passport to the 2nd Applicant.

21. I have decided after careful consideration that I have no alternative but to proceed upon the basis that no satisfactory answer has been provided to this important evidence and that the 2nd Applicant did indeed use the name Lam Sui Hung. There must also be serious doubts as to whether the 2nd Applicant was rightfully entitled to hold her Thai passport in the name of Malee Sae Tang.

22. Section 27 of the Marriage Ordinance Cap. 181 provides :-

" 27.(1) No marriage shall be valid which would be null and void on the ground of kindred or affinity in England or Wales.

(2) A marriage shall be null and void if both parties knowingly and wilfully acquiesce in its celebration in any place other than the office of the Registrar or a licensed place of worship (except when authorized by a special licence, or when celebrated under the provisions of paragraph (b) of the proviso to section 21(3), or when celebrated under the provisions of section 39), or under a false name or without a certificate of notice or licence duly issued, or by a person not being a competent minister or the Registrar or his deputy, or if either party to the marriage is at the time of its celebration under the age of 16 years. (Replaced, 13 of 1934, s.4; 20 of 1948, s.4, and 1 of 1960, s.15)

(3) But no marriage shall, after celebration, be deemed invalid by reason that any provision of this Ordinance, other than the foregoing, has not been complied with."

23. It will thus be appreciated that the use of a false name is a serious matter. If it can be established that a false name has been used the marriage is invalid.

24. Sections 6 and 7 of Cap. 181 deal with the mechanics of Notification of Marriages. There is a prescribed form to contain the relevant details.

25. I have no doubt whatever having regard to the provisions contained in section 27 of the Ordinance that it was incumbent upon the Registrar of Marriages to satisfy himself inter alia that neither of the proposed parties to the marriage was assuming a false name.

26. It was evident on the face of the Recognisance which was tendered as evidence of the 2nd Applicant's identity that the offences she was facing related to breaches of the Immigration Ordinance. It is therefore not surprising that the staff in the Registry Office sought further evidence of the Applicant's identity.

27. It is important to bear in mind that the relief being sought is of a discretionary nature. It is accordingly necessary for me to bear in mind the whole of the background of this case. The Applicants have not seen fit to take issue with the serious allegations which have been made by the representatives of the Respondents and as I have indicated I have no alternative but to assume that at least the 2nd Applicant has deliberately attempted to mislead the authorities in both Hong Kong and in Thailand. In such circumstances it would clearly be contrary to public policy for me to grant the relief being sought. The authority of this proposition being The Queen v. The Secretary for State for Home Affairs Ex parte Pattick 1979 3 All ER 463.

28. There is a further good reason why the order sought should not be made. If indeed the 2nd Applicant has been using a false name as seems highly probable it would be a futile exercise to make an order which would enable the parties to go through a ceremony of marriage if at the end of the day the marriage is void by virtue of section 27.

29. I do not think that it is necessary for me to deal with the other matters posited in the Application. Suffice it to say that the application is dismissed. I am indebted to Miss Scully of the Attorney General's Chambers for the assistance she has given me. I will hear the parties on costs.

Representation:

Mr. Chan Yat-fai, 1st Applicant in person

Madam Malee Sae-tang, 2nd Applicant in person

Master Chan Chi-yuen by his next friend and father Chan Yat-fai, 3rd Applicant

Miss Paula Scully, S.C.C. and Miss Irene Siu, C.C. (Attorney General's Chambers) for Respondent